Disposed

Paulose.a.a v. State of Kerala

Kerala HC8 Mar 2022WP(C)/1235/2019

Case brief

AI extract

What is this about?

The High Court disposed of a public interest litigation filed by a petitioner seeking directions to construct a bridge and restore ferry services disrupted due to safety concerns. The Court found that administrative sanctions and state fund allocations for the bridge were in place but procurement and acquisition were pending. The Court directed the administration to expedite land acquisition and c

What the court decided

AI extract

Paulose.a.a Vs State of Kerala — Municipal and Town Planning | Kerala HC (2022)

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W. P. (C) No. 1235 of 2019 -1-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 8^TH DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 WP(C) NO. 1235 OF 2019

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PETITIONER/S:

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PAULOSE.A.A AGED 47 YEARS S/O. AUGUATINE, ANTHIKKADE HOUSE, ELOOR SOUTH, UDYOGAMANDAL P.O., KOCHI - 683501. BY ADVS. K.G.MARY SRI.ARUN P. ANTONY

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TRIVANDRUM - 695001.

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2 DISTRICT COLLECTOR, ERNAKULAM DISTRICT PIN CODE - 682030.

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3 SECRETARY, ELOOR MUNICIPALITY PIN CODE - 683501.

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4 SECRETARY, CHERANELOORE PANCHAYATH PIN - 682034.

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5 SECRETARY, VARAPUZHA PANCHAYATH PIN CODE - 683517. BY ADVS. SRI. TEK CHAND, SR GP FOR R1 AND R2 SRI.K.S.ARUN KUMAR FOR R3 SRI.T.K.AJITHKUMAR (VALATH) FOR R4 SRI.ASHOK B.SHENOY FOR R5 SRI.JUSTINE JACOB

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W. P. (C) No. 1235 of 2019 -2-

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

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S. Manikumar, C.J.

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Instant writ petition has been filed for the following reliefs:-

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“i. To issue a Writ of Mandamus directing the 1^st and 2^nd respondent to construct the bridge connecting Eloor and Cheranalloore within a time span;

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ii. To issue a Writ of Mandamus directing the respondents to initiate immediate actions for resuming the ferry service with immediate effect;

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iii. To issue a writ of Mandamus directing the 2^nd respondent to issue speaking guidelines for ensuring the security measures on which reason the ferry service is stopped;

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iv. To issue a Writ of Mandamus directing the respondents to continue the ferry service.

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Short facts leading to the filing of the writ petition are as

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hereunder:-

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a) According to the petitioner, he is an employee of Asianet cable service and residing at Eloor, Ernakulam. Eloor is a place which is surrounded by river Periyar, except on its eastern side, which lies

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towards Kalamassery. Eloor situates within the local jurisdiction of Eloor Municipality, the 3^rd respondent. There are so many industrial factories functioning in the locality including IRE, Petro chemical Ltd., Hindustan Insecticides Ltd., Travancore Cochin Chemical Ltd., Indian Aluminum Company Ltd. and 15 other small industries too. There are altogether 31,000 people residing in Eloor.

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b) Petitioner has submitted that Cheranallore and Mannamthurthu are situated on the southern and western sides of Eloor. The inhabitants of the said three places were resorting the ferry service, was conducted by the 3^rd respondent, for ingress and egress, in relation to their basic necessities of life such as employment, education, medical treatment etc. The said ferry service was in existence since 1970. Formerly, the ferry service was conducted by Eloor Municipality, Cheranellore Grama Panchayat and Varappuzha Grama Panchayat, respondents 3 to 5 respectively, on yearly rotation basis. But for the last 5 years, the 3^rd respondent alone is conducting the ferry service continuously.

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c) Petitioner has further submitted that being so, on 31.03.2018, the District Collector, Ernakulam, the 2^nd respondent, had given a stop

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memo to the 3^rd respondent Municipality, to stop the ferry service for security reasons, without providing an alternative system for resuming the conveniences enjoyed by the residents of locality for the last 49 years. Subsequently, the 3^rd respondent stopped the service from the very next day onwards. The same has put the massive population of Eloor and the other two places into grave miseries. In such circumstances, people are compelled to travel kilometers and kilometers through roads in order to reach their close destinations.

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d) It is also submitted that Eloor, due to the presence of many industrial companies, is an accident prone area. There are chances for explosion, fire, Gas tragedies etc. In case of such unfortunate happenings, the round about road access is little worth for escape.

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e) Petitioner has contended that though the State Government, the 1^st respondent, has already granted sanction for constructing the bridge, and subsequently, on 26.01.2016, laid the foundation stone also by the then Public Works Department Minister, the same has hung up on red tapes. Hence, the instant public interest litigation is filed, seeking direction for constructing the bridge, and for resumption of the ferry service immediately, until the completion of the said

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construction.

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Eloor Municipality, the 3^rd respondent, has filed a statement dated 25.01.2019. Relevant paragraphs of the statement are extracted

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hereunder:-

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“3. It is respectfully submitted that Eloor Municipality had been running the Eloor - Mannamthuruthu Ferry service on contract basis and Municipality has been meeting Rs.12,000/- per month towards the same the expenditure. After conducting the auction for the ferry service was awarded and the Municipality has been paying the expenditure for the conduct of ferry on monthly basis.

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That being so as averred in para 3 of the WP letter No.D1 6313/17 dtd.07.08.2017 was received from the 2^nd respondent based on the report dtd.20.06.2017 of the Deputy Superintend, CID Special Branch, Ernakulam to the effect that adequate safety measures are not taken in the conduct of the ferry service. Based on that report the Municipal Council vide Resolution No.1 dtd. 31.08.2017 decided to temporarily stop the ferry service w.e.f 31.08.2017.

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Thereafter the ferry service was auctioned on 7.10.2017 and nobody participated in the auction, but in the reauction done on 9.11.2017 Sri. V.T. Saju, after fulfilling on legal formalities submitted a quotation for conduct of ferry service on condition that Municipality shall pay an amount of Rs.29,000 per month towards the expenditure for the conduct of ferry service.

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After negotiation with Sri. Saju the amount was lowered to Rs.19900/- per month. Thereupon Sri. Saju executed agreement with Municipality towards to the conduct of ferry service upto 31.03.2018.

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In view of the expiry of the contract period on 31.03.2018, Municipality had conducted auction for the conduct of the ferry service on 07.03.2018 Nobody participated in the auction of the Eloor-Mannamthuruthu-Cheranelloor Ferry. Again re-auction was conducted on 31.03.2018, 16.05.2018 and 06.07.2018 for the conduct of Eloor-MannamthuruthuCheranelloor Ferry. But nobody has expressed any offer / willingness for the conduct of the ferry. Therefore from 01.04.2018 the ferry service is disrupted, despite the best effort on the part of the Municipality.

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It is also submitted that Eloor Municipality is conducting yet another ferry service that too connecting EloorCheranelloor and the same has been running uninterruptedly.”

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Subsequently, on 12.07.2019, an additional statement has also

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been filed by Eloor Municipality, the 3^rd respondent, wherein it is stated thus:-

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“3. When the matter came up for consideration on 09.07.2019 this Hon'ble Court has directed to state whether a ferry / boat service is operating between Eloor and Cheranellor and whether there has been any recent interruption, of such a ferry/boat service. In this regard It is most respectfully submitted

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that from Eloor Municipality there has been ferry services to Cheraneloor from two different locations of Eloor Municipality. The Ferry Service from Manjummel Kadavu in Eloor Municipality to Cheraneloor Kadavu in Cheranellor Panchayat, across Muttar River, a tributary of River Periyar is carried on with the assistance of ordinary Vanchi is now in operation. The said Ferry Service from Manjummel Kadavu to Cheraneloor Kadavu was interrupted from 01/05/2019/ to 26/06/2019 since nobody participated in the auction. After the negotiation done by the Municipal Chairperson the same was re-commenced from 27/06/2019, on a monthly rate of Rs.12000/-/ per month. Whereas the other Ferry service connecting Cheraneloor, ie, the Eloor Mannamthuruthu Ferry which was conducted by mechanized Jankar is disrupted w.e.f 01.04.2018.

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It is most respectfully submitted that Eloor Municipality was conducting all together three Ferry Services, namely(1) Eloor Mannamthurthu Ferry (2) Dippo Kadathu and (3) Cheranelloor Kadathu. Eloor-Mannamthurthu Ferry service was conducted with the assistance of mechanized Jankar combined of three boats, where as the other two are Ferry service is conducted with the assistance of ordinary boat (vanchi). Out of the above three Ferry services, except Eloor-Mannamthuruthu Ferry Service, the other two, viz, Dippo Kadathu connecting Eloor Dippo and Muttinakam in Varappuzha Panchayath and Cheranelloor Kadathu Manjummel Kadavu and Cheranellor Kadavu are in operation. Eloor-Mannamthuruthu has been connecting to both Cheraneloor as well as MannamthuruthuEloor-Mannamthurthu Ferry while in operation operated in a

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triangle manner, ie from Eloor Chouka/Ferry it proceeded to Cheraneloor in Cheraneloor Panchayath and from there proceeded to Mannamthuruthu in Varappuzha Pachayath and from Manamthuruthu, it returned to Eloor.

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In view of the expiry of the contract period for the Eloor Mannamthuruthu Ferry on 31.03.2018, Eloor Municipality had conducted auction on 07.03.2018 for conduct of the ferry service. Nobody participated in the auction of the Eloor Mannamthuruthu Ferry. Again re-auction was conducted on 31.03.2018, 16.05.2018 and 06.07.2018 for the conduct of Eloor Mannamthuruthu Ferry. In the meanwhile some local residents put forwarded the suggestion of conducting 'Kadathu' (ordinary Vanchi) instead of Janakar service in Eloor-Mannamthuruthu Ferry. But due to safety reasons and considering the previous report of Special Branch and the District Collector 'Kadathu' hast not been permitted there. Because the width of the River Periyar in the said Ferry location is nearly 200 meters and moreover in this location of the Ferry is a River Confluence by the combining of the two tributaries of River Periyar and the said location is comparatively very deep too. Earlier in the meeting convened by the ADM in the Ernakulam Collectorate with regards to the issue, suggestion for the conduct of 'Kadathu' (ordinary Vanchi) instead of mechanized Ferry service was repelled and in the meeting it was made clear that human safety is prime important than the any other aspects of the issue. Again after the filing of the Writ Petition, another auction was held on 02.03.2019. But nobody has expressed any offer/willingness for the conduct of the Eloor Mannamthuruthu Ferry. Again re-auction was conducted on

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10.5.2019. But nobody expressed any willingness. Therefore from 01.04.2018 the ferry service is disrupted, despite the best effort on the part of the Municipality.

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It is most respectfully submitted that Eloor Municipality is still taking keen efforts in re-commencing the disrupted Eloor - Mannamthuruthu Ferry. Municipal Chairperson has already addressed the local MLA for allotment of Boat to Eloor Municipality under MLA Fund. In the meanwhile negotiation talks done also done with the persons who earlier conducted the Mannamthuruthu Ferry Service. It is also submitted that if the 4^th and 5^th respondent who are also coobligant in the conduct of the Eloor - Mannamthuruthu Ferry, makes some arrangements for the conduct of the said Ferry, Eloor Municipality will also make the due contribution for the conduct of the same.

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Earlier the Cheraneloor Kadathu was conducted by the Cheraneloor Grama Panchayath, when the said Kadathu service was disrupted, Eloor Municipality took initiative to re-commence the same and it is submitted that per month Eloor Municipality is spending Rs.12000 for the conduct of the Manjummel - Cheraneloor Ferry (Kadathu) and Rs.9500 for the conduct of the Eloor-Dippo Ferry (Kadathu) with no monitory return and without any contribution from the equally responsible other Local Bodies. Moreover earlier even for the conduct of the Eloor Mannamthuruthu Ferry Service, Eloor Municipality has been incurring a monthly expenditure of Rs.19900 in addition to the right to collect passenger fare. Hence it is most respectfully submitted that there has been no willful latches or neglect on the

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part of Eloor Municipality in the conduct of the Eloor Mannamthuruthu Ferry Service.

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It is respectfully submitted that in spite of the best and sincere efforts from the side of this respondent the EloorMannamthuruthu Ferry service (mechanized Jankar combined of three boats) connecting Cheranellor could not be operated from 01.04.2018. Though Eloor Municipality has conducted auctions and re-auctions nobody has expressed any offer/willingness for the conduct of the Eloor-Mannamthuruthu Ferry service.

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Eloor Municipality is surrounded by Periyar River and there are altogether 9 bridges across the river and two ferry service operating there to connect different places. One main reason the boat owners is not willing for Ferry services is the diminishing numbers of passengers resulting less monitory benefit. At present Chiranellur Ferry (Vanchi Kadathu) Municipality has to pay 12000/- per month. The amount given by municipality as above is in addition to the right to collect charges from passengers.”

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On this day, when the matter came up for hearing, Mr. K. S. Arun Kumar, learned counsel appearing for Eloor Municipality, the 3^rd respondent, submitted that as on today, there is no disruption of EloorMannanthuruthu-Cheranellor ferry service. Submission of the learned counsel appearing for the Eloor Municipality is placed on record.

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As regards the 1^st prayer, for a mandamus directing the 1^st and

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2^nd respondent to construct the bridge connecting Eloor and Cheranalloore, on instructions, Mr. V. Tekchand, learned Senior Government Pleader, submitted thus:-

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“Administrative Sanction for the Construction of Cheranelloor- Eloor chowka Bridge across Muttar river in Ernakulam District was accorded vide G.O(Rt)No 199/2016/PWD dt: 29/01/2016 under NABARD RIDF-XX Scheme for Rs. 1170 Lakhs.

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An extent of 49.50 Ares were to be acquired for the project and the proposal amounting to Rs.500 Lakhs was submitted to Government for according administrative sanction. All the affected land gave advance consent for the construction work in their land subject to payment of compensation by completing L A procedure.

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After obtaining advance consent from the land owners, the work was tendered and agreement executed on 09/12/2016. But due to the changes in final design drawing, the contractor did not start the work of this bridge. Since the contractor was not willing to proceed with the changed final design, the work was terminated vide Order No: DBA-2016/1041 dt:10/05/2018 of the superintending Engineer, PWD Roads & Bridges Central Circle, Aluva.

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Mean while the land owners at Cheranalloore side of the bridge filed a petition before the Hon'ble High Court of Kerala vide WP(C) No: 4223/2018 seeking direction not to proceed with

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construction of bridge and approach road without obtaining Administrative Sanction for land acquisition.

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The Principal Secretary to Government vide Letter No. PWD-D1/412/2017-PWD Dated 20/03/2018 directed to invite fresh tender as per the revised design after obtaining Administrative Sanction for Land Acquisition.

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Government vide G.O(Rt) No.380/2020/PWD dated 31/03/2020 accorded Administrative sanction for Land Acquisition for Rs. 500 Lakhs. Revenue (B) Sanction for Land Acquisition has also been obtained vide G.O(Rt) No: 3818/2020/RD dated 21/12/2020 and requisition for and acquisition submitted to District Collector and Land Acquisition Process is in progress now.

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Due to 2018 floods, the Maximum flood Levels of the river has been changed and proposal has been submitted to design wing for revision of design.

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Administrative Sanction for the construction of bridge was accorded on 29/01/2016 and in the records of NABARD, the work is marked as non-starter and is treated as withdrawn. Hence Government have allocated an amount of Rs: 1170 for the work under state plan vide G.O (Rt) No: 526/2021/PWD Dtd:18/05/2021.

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Since the procedure for land acquisition is under process necessary steps may please be taken for the disposal of WP(C) No.1235/2019.”

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Supporting the above submissions, learned Senior

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Government Pleader has also produced copies of the Government Orders, which are reproduced hereunder:-

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“ GOVERNMENT OF KERALA

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Abstract

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PWD- Land acquisition for the work Construction of Cheranalloor - Eloor Chowka Bridge across Muttar river in Ernakulam District- Administrative Sanction accorded - orders issued:-

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PUBLIC WORKS (D) DEPARTMENT

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G.O.(Rt)No.380/2020/PWD Dated,Thiruvananthapuram, 31/03/2020

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Read: 1. G. O. (Rt) No. 199/2016/PWD dated 29.01.2016

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Letter No. CE/Bridges/EKM/5646/2019 dated 24.07.2019, letter No. CE (R&B) NB-21/B-09/15 dated 03.03.2017, 08.10.2017 and 29.07.2019 and letter No. CE BR/EKM/8523/19/MIN dated 28/10/2019 from Chief Engineer (Bridges).

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ORDER

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As per the order read above Administrative sanction was accorded for the work Construction of Cheranalloor - Eloor Chowka Bridge across Muttar river in Ernakulam District for Rs.1170.00 lakhs under NABARD RIDF- XXI scheme. The cost of land acquisition has not included in the proposal. Therefore as per the letter read above the Chief Engineer (R&B) has submitted an estimate for land acquisition for the work for "Construction of

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Cheranalloor - Eloor Chowka Bridge across Muttar river in Ernakulam District" for an amount of Rs. 500.00 lakhs for Administrative Sanction since the NABARD will not approve the cost for land acquisition now it is proposed to allot from state funds.

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Government have examined the proposal in detail and are pleased to accord Administrative sanction for land acquisition for the work Construction of Cheranalloor - Eloor Chowka Bridge across Muttar river in Ernakulam District for an amount of Rs. 500.00 lakhs under the H/A 5054-04-101-94-PV.

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(By order of the Governor)

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K MINI

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SPECIAL SECRETARY

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GOVERNMENT OF KERALA

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Abstract

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Public Works Department-Allocation of an amount of Rs. 1170 Lakh under state plan for the work "Cheranelloore Eloor Chowka Bridge across Muttar River" in Ernakulam District-Sanction accorded -Orders issued:-

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PUBLIC WORKS (D) DEPARTMENT

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G.O.(Rt)No.526/2021/PWD Dated, Thiruvananthapuram, 18/05/2021

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Read: 1. GO(Rt) No.199/2016/PWD dated.29/01/2016.

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Agreement no. 126/SECCA/2016-2017 dated 09/12/2016.

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Letter No.PWD-D1/412/2017-PWD dated 20/03/2018.

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GO (Rt) No.380/2020/PWD dated.31/03/2020.

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G.O.(Rt) 3818/2020/RD dated 21/12/2020.

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Letter No. CE(R&B)NB-21/B-09/15 dated 25/09/2020 from the Chief Engineer Bridges, Thiruvananthapuram.

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ORDER

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As per the Government Order read as 1^st paper above Administrative Sanction was accorded for Rs.1170 Lakhs for the work "Cheranelloore Eloor Chowka Bridge across Muttar River" in Ernakulam District and Technical sanction was also accorded by Chief Engineer, PWD, Roads & Bridges for Rs.1170 Lakhs.

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The Chief Engineer, Bridges has reported that the work was awarded to M/s Creators as per agreement read above @ 14.01% below Estimate Rate. The final GDD was obtained from design wing in that size and number of piles changed and also Land acquisition procedures were pending. In this circumstances contractor refused to execute the work and as per judgement in WP(C) no.31974/2017 closure agreement was executed with the contractor.

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As per the letter read above, Government had directed to invite a fresh tender only as per revised design after obtaining Administrative Sanction for Land acquisition and as per GO read as 4^th paper above Administrative Sanction was accorded for Land Acquisition for Rs.500 lakhs.

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As per read as 5^th paper above sanction was accorded for Acquisition of 49.50 Ares of land in Eloor, Varappuzha and Cheranelloor Villages of Ernakulam district for the construction of Cheranelloor - Eloor - Chowka Bridge.

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Now as per the letter read as 6^th paper above, Chief Engineer, Bridges informed that General Manager, NABARD

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has intimated that the above work is marked as non-starter and is treated as withdrawn in their records. However, as a special case, they may consider to reimburse the eligible expenditure until the closure of tranche XXI which is expected to be in March 2021. Since the work is not even arranged they would not be able to complete the work in time using NABARD fund. Hence State fund will be needed for the same. Under the above circumstances, CE, Bridges has requested to give necessary direction for arranging this project.

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Government have examined the matter in detail and are pleased to allocate an amount of Rs.1170 Lakh (Rupees One thousand one hundred and seventy lakh only) under State plan for the work "Cheranelloore Eloor Chowka Bridge across Muttar River in Ernakulam District" under the Head of Account 505404-101-94-(PV).

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(By order of the Governor)

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REETHA S PRABHA

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ADDITIONAL SECRETARY ”

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Thus, from the above, it could be seen that administrative

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sanction has been granted for the construction of the bridge and that the Government have also allocated a sum of Rs. 1170 lakhs under the

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State plan, vide G. O. (Rt) No. 526/2021/PWD dated 18.05.2021.

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According to respondent Nos. 1 and 2, steps for acquisition of

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the land for construction of the bridge is under process.

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Placing on record the above, addressing the grievances raised in

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the writ petition, we only direct that steps, taken for acquisition of land for the purpose of construction of Cheranelloor – Eloor Chowka

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Bridge, be expedited, and consequently, the construction of the bridge.

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With the above directions, writ petition is disposed of.

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Sd/S. MANIKUMAR CHIEF JUSTICE

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Sd/SHAJI P. CHALY JUDGE

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///TRUE COPY/// P. A. TO JUDGE

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W. P. (C) No. 1235 of 2019 -19-

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APPENDIX OF WP(C) 1235/2019

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PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE MASSIVE PETITION BEFORE THE 3RD RESPONDENT SEEKING RESUMPTION OF THE FERRY SERVICE DATED 09/07/2018. EXHIBIT P2 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT TO THE 3RD RESPONDENT DATED 25/07/2018. EXHIBIT P3 TRUE COPY OF THE REPLY TO EXT.P2 SENT BY THE 3RD RESPONDENT DATED 01/08/2018.

Paulose.a.a v. State of Kerala

Case brief

What is this about?

What the court decided

Paulose.a.a v. State of Kerala

Case brief

What is this about?

What the court decided

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